Bulger asks judge to push trial to November

The week of October 24 may go down as the week the gloves finally came off in the case of U.S. v. Bulger.

Less than 48 hours after boldly telling U.S. District Court Judge Richard G. Stearns that appearance of impropriety problems required his removal from what promises to be one of the most memorable courtroom clashes in Massachusetts history, James "Whitey" Bulger’s defense lawyers have now requested their client’s March 4 trial date be pushed back until Nov. 13.

Following up on statements he made to a U.S. magistrate judge during a contentious Oct. 24 status conference, J.W. Carney Jr. argues in a Friday filing that there is simply no way he can be ready for jury empanelment in four months.

"As defense counsel has stated in great detail in its status memoranda and orally before this court, numerous obstacles are restricting the defense’s ability to be adequately prepared for trial nearly four months from today," Carney wrote. "As it stands, the current trial date infringes on the defendant’s rights to due process of law and to the effective assistance of counsel under the Fifth and Sixth Amendments of the United States Constitution."

Carney, who is handling the case with co-counsel Hank Brennan, noted that he would not even be able to complete the initial task of reviewing the voluminous discovery in the case until May.

He said the defense has a moral and ethical obligation to effectively represent their client, which extends beyond the fervor to start the trial in March.

"At a minimum, the defense must be allowed to review all of the discovery, file and litigate substantive motions, and adequately prepare for trial," the Boston lawyer wrote. "Mindful that a case of this magnitude could reasonably take three to four years to adequately prepare, the defense has compromised to the extent possible to be ready in November of 2013."

Carney accused the court of setting the March 4 trial date "arbitrarily" and without any consideration of the difficulties created by the "shameful discovery production by the government."

He said Stearns and U.S. Magistrate Judge Marianne B. Bowler have done little to relieve the burdens created by the additional discovery. For example, the court rejected an earlier request for the appointment of six contract attorneys, who could have helped to meet the extraordinary discovery demands of this case, he said.

"The government recently suggested that trial should go forward due to the defendant’s age," Carney added. "The defendant’s age should not be a reason to infringe upon his constitutionally protected rights."

Carney said that to do so would set a dangerous precedent.

He said Bulger is not "delaying trial" and that his motion to continue was based in part on the "bad faith" of prosecutors in turning over discovery.To date, Carney said he has received approximately 366,000 electronic pages of documents, more than 100 recorded phone calls on 1,000 cassette tapes, dozens of videos and over 10,000 photographs.

The defense expects those numbers to sky-rocket when it obtains trial exhibits from many of the Bulger-related civil cases that have been brought over the years.

"The government has done an effective job frustrating the discovery process," he said. "After the government’s vow to the court to facilitate discovery, assist the defense, and provide organization to the discovery, the prosecutors simply have done the opposite."

A few hours after filing his motion, Stearns marked the matter up for a hearing on Nov. 1. That date will mark the first time Carney has appeared in front of Stearns on the case. Win, lose, or draw, Carney has certainly created an interesting and significant issue on appeal. It is not clear whether Bulger will be brought in to court for the proceeding.

I’ve been saying for quite some time that I didn’t think the March date was realistic. My money still says the trial won’t get off the ground until late 2013 – early 2014.

Follow David Frank on Twittter @davidfrankmlw.

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